Overview of Evidence Used in Criminal Trials

Evidence—Any proof legally presented through witnesses, records, documents, exhibits or other concrete objects for the purpose of introducing belief in the minds of the court, judge or jury. The rules of evidence are found in The Canada Evidence Act.

Purpose—Evidence is information that proves or disproves disputed facts. Evidence must be legally obtained, admissible and cannot infringe or deny any rights or freedoms guaranteed by the Charter.

Some highpoints from the Canada Evidence Act are listed below:

1. An accused does not have to testify against himself/herself.

2. If an accused takes the stand he/she will be cross-examined and questions about his/her criminal record or past will be revealed that otherwise would not be. The court must decide on the evidence of the case and not on the prior history of the accused. No criminal record information is normally part of the trial. Having the accused testify has to be considered carefully by the defence attorney or his/her case could be compromised.

3. A witness who testifies cannot have the evidence used against him/her unless he/she has lied (committed perjury) or given contradictory evidence (cannot be substantiated). Consequently Canadians never have to plead the fifth as the Americans do.

4. Because the communications between spouses are privileged (just like attorney-client conversations), the spouse of the accused does not have to testify but can choose to do so if charges are regarding issues such as wife or child abuse.

5. Witnesses can include children and refers to anyone who is competent, understands the nature of an oath/affirmation, and understands the questions put before him/her by the various parties. No case may be decided upon the testimony of a child alone. It must be corroborated by some other material evidence as well as two pieces of evidence are needed to convict in Canada.

TYPES OF EVIDENCE

1. DIRECT EVIDENCE It is considered to be the best evidence yet individuals have been identified incorrectly. It is usually obtained from a witness who actually saw the offence being committed. But, in many instances, there may have been no witnesses, or they may have left the scene of the crime without identifying themselves. Thus, the court has to depend in large part on many other types of evidence that follow. Admissible evidence in Canada.

2. CIRCUMSTANTIAL EVIDENCE OR INDIRECT EVIDENCE

Witness id not actually see the crime committed but saw the

accused holding a knife or leaving the scene of the crime. The

accused cannot be convicted solely on circumstantial evidence. It

is admissible in a Canadian court of law.

3. EXPERT OPINION A person specializing in a particular area and acknowledged by the court as being a very knowledgeable person to speak about only his area of expertise. ie. Doctors, psychiatrists, forensic experts, pathologists, etc. Admissible evidence. Each side can have up to five expert witnesses. Exception: Drunkenness, speed, and colour are three areas that are common to everyone’s experience so opinions on that are sometimes asked and allowed in court.

4. PHYSICAL EVIDENCE

Includes written materials, fingerprints, blood, shoeprints, fibers, paint, hair, pictures, guns, or any other objects

That might help the jury or court to understand what happened.

In order to introduce physical evidence, the lawyer presenting

the evidence must follow this procedure:

1. Show it to the judge, ask that it be marked for identification, and have the bailiff mark it with a number.

2. Show it to the opposing counsel.

3. Show it to the witness and ask him/her to explain what it is.

4. Offer it into evidence by asking the judge to admit it.

If a body is found in a building, the point of entry is carefully checked for fingerprints, footprints, fiber and other evidence.

The bathroom sink, underside of desks and toilet seats and even

water taken from the bathroom drain have often given the best

results.

Fingerprints fall under three categories: visible which means the perpetrator probably had ink, grease, blood or some other substance on his or her hands are the most obvious. Plastic prints are those left in soap, wax, or even chewing gum—any substance that will retain the shape of the print after the perpetrator has removed his or her hand from it. Latent prints which are the third type and invisible to the naked eye are formed when natural oils and perspiration on the fingers transfer the print to a smooth surface. Investigators often use dusting to obtain these prints.

The United States is now requiring a full set of fingerprints (previously only two fingers) and photos from any visitors to their country including any Canadians who need visas to enter the USA. This falls under the area of biometrics. Visitors will include students and nurses and customs officials have the right to fingerprint anyone, regardless of nationality, if officers are suspicious of their travel plans.

5. DNA FINGERPRINTING OR GENETIC FINGERPRINTING

Every individual has his/her own genetic marker which is pulled from hair, teeth, bodily

fluids, bones, and nails and it is matched to skin scrapings, blood, or bodily fluids

found at the crime scene. It can prove or disprove that a suspect has been at the

scene of a crime and helps police solve crimes. It came into existence in 1984 and was

first used to prove a man’s innocence in Toronto. (Guy Paul Morin) It is paid for by the

Canadian government but in the United States, the accused has to pay for it himself

which could be up to $2,000. in cost. Canada charges approximately $400. for DNA

based paternity testing.

ANIMAL DNA LAB TO TEST FUR-ENSIC EVIDENCE

A killer gets his cat’s fur on his clothing and then sheds it on a victim. A dog licks a burglar as the criminal carries out his booty. A dog urinates on a robber’s car tire before the getaway. A criminal could be linked to a crime scene if animal DNA had a central lab that processed the info and tied it in with a law enforcement agency. That has just begun in California, USA and hopefully will catch on with other states and countries. Animal material will be systematically collected in rape and homicide cases and juries will get the DNA results.

Detectives and prosecutors will have to be trained in the new technology: dog feces, feeding bowls and chew toys may become standard evidence that detectives will take from crime scenes along with spent bullets and fingerprints.

6. VIDEO RECORDINGS

A visually taped recording of a situation that could provide needed information for a court case. The judge has to decide if the people recorded have had their privacy invaded if the recording is inside a dwelling. However, no one can expect privacy in a public area. Thus, public washrooms (not inside the cubicles), any major roadway, intersection or bridge, public parks or parking lots, public areas in general can be videotaped and used against you without your knowledge. Videorecordings of your driving behaviour can be used against you in a court of law and are fully admissible. Cameras have a preventative impact and enhance safety. Many people however, have concerns about privacy and whether it’s excessively intrusive. Who is maintaining these cameras, who has custody of the records and how long would they be held.

7. WIRETAPPING

A communication, usually an electronic recording of a conversation, that has been intercepted, is inadmissible as evidence against the two people speaking unless ordered by a judge or unless the originator or the person intended to receive it expressly consents to the admission. However, other evidence obtained by interception is not admissible.

The most likely example would be the taping of a conversation on a phone. You can always be wiretapped and should have no expectation of privacy when on the phone.

A Supreme Court judge may give permission for video surveillance for national security reasons (30 days at a time).

8. PHOTOGRAPHS

Photographs that clearly portray the scene of a crime are admissible. However, photographs taken at the scene of a crime that depict gore and violence can really upset a jury who are not used to seeing crime scene pictures. Thus, the judge must give approval of any photographs that can inflame a jury in a court hearing known as “voir dire”. In English, this translate into a trial within a trial.

This is how it happens. One of the lawyers wishes to introduce pictures in a court case and approaches the bench and ask the judge’s approval. The jury are asked to leave the room. The judge and other lawyer discuss whether the pictures will prejudice the jury and the judge makes a decision. Allowing inappropriate pictures could result in an appeal if the accused is found guilty on the grounds that the jury was prejudiced.

9. SIMILAR FACT EVIDENCE

Evidence introduced during the course of a trial which indicates that the accused has performed the same kind of crime in the past. This is tricky evidence to introduce because you are prejudicing the jury and it could be grounds for an appeal or even a mistrial. The judge has to think very carefully about whether to make it admissible. A voir dire could be used for this too.

Usually, if the Crown is confident in winning, this evidence is shown at the pre-sentence hearing after the accused is found guilty to ensure a lengthy prison stay. The only other way that similar fact evidence can be brought into a trial is if the accused chooses to testify. This means the Crown can cross-examine the accused about his/her criminal past.

***Remember, in Canada, there must be two pieces of evidence against an accused to find him/her guilty. Thus, even if you had an eye witness, you need a second piece of evidence in order to convict. This is known as corroboration. Corroboration is particularly important when the accused is being tried for forgery, perjury, treason and procuring a person for prostitution.

10. HEARSAY EVIDENCE

Very simply, a witness is trying to repeat what he/she heard two other people say. Inadmissible unless the two people who were having the conversation are dead.

The court states that witnesses can only testify to what they have personally seen, heard, touched or smelled. There is no way to verify the authenticity of the hearsay and one cannot cross-examine the actual people overheard. Gossip is unacceptable and people talking must be subpoenaed.

11. CONFESSIONS

At some point in the arrest procedure and during questioning, the accused confessed to the crime. However, he/she subsequently pleaded guilty to the same crime. Will the confession be admissible? The following rules apply to the use of a confession as evidence.

1. It must be voluntarily made.

2. Promises of leniency by the police cannot exist.

3. A confession made after hours of questioning where the accused was denied sleep, food, water, or washroom privileges cannot be accepted.

There are two types of confessions:

an inculpatory confession is an admission of guilt

an exculpatory confession is a denial of guilt

The judge must rule on the admissibility of the confession and consider whether its use will lead to an eventual appeal.

12. POLYGRAPH OR LIE DETECTOR TEST

A machine that measures your respiration, heart rate and skin response to a series of yes/no questions. It is inadmissible in a court of law in Canada because the machine cannot be cross-examined and actually is considered hearsay evidence. Also the interpretations of the machine are subject to the talent and skill of the interpreter and two different interpreters could analyse the same answers differently.

Sometimes, the defence attorney tries to enter the results to a positive polygraph into a pre-sentence hearing after the accused has been found guilty in the hopes that it will give the accused a lighter sentence. However, both the Crown and the defence have to agree and the Crown has nothing to lose as he/she has already won the case.

13. ILLEGALLY OBTAINED EVIDENCE

If any evidence used in the trial was obtained illegally without the judge’s approval, without a warrant or without permission, it may be ruled inadmissible no matter how valuable it is.